France Levies Surcharge on Dividends Y ,

Transcription

France Levies Surcharge on Dividends Y ,
October 2014
Follow @Paul_Hastings
France Levies Surcharge on Dividends
BY NANCY IREDALE, ALLARD DE WAAL, STEPHEN TURANCHIK & THOMAS PULCINI
Refund Opportunity:
Effective August 17, 2012, the French government imposed a 3% surcharge (the “3% Surcharge”)
on dividends paid by any entity liable for French corporate income tax (“CIT”). This 3% Surcharge is,
in substance, an additional tax imposed on French source dividends, raising the total CIT applicable to
French source dividends to 36.90%.
U.S. and other non-French investors with a European holding company (an “EU Holding Company”)
which owns one or more French subsidiaries should quantify the amount of the 3% Surcharge and
consider filing refund claims for that amount. We believe it is likely that the 3% Surcharge violates the
European Union Parent-Subsidiary Directive (the “EU Directive”).
Background:
U.S. investors who own French subsidiaries through an EU Holding Company (such as Luxembourg or
the Netherlands) are now indirectly subject to the 3% Surcharge on any dividends distributed by the
French subsidiaries. The use of an EU Holding Company is common both for U.S. and non U.S. tax
reasons and generally allows U.S. investors to reduce withholding taxes on dividends received from
their European subsidiaries.
Some EU jurisdictions (such as Luxembourg and the Netherlands) exempt dividends under a
“participation exemption” regime and also offer beneficial tax treaties with other countries allowing for
reduced rates of withholding. Dividends received by an EU Holding Company and reinvested outside
the U.S. may achieve tax deferral from the U.S. corporate income tax.
The introduction of the 3% Surcharge reduces the effectiveness of these strategies but leaves unclear
whether the 3% Surcharge can be credited against the U.S. corporate income tax.
The French taxation authorities have creatively used the term “surcharge” rather than the more
accurate phrase of “withholding tax”. Regardless of the terminology used to describe it, we believe
that it is incompatible with the relevant provisions of the EU Directive on intra-group distributions. In
our view, the 3% Surcharge is an additional withholding tax which violates the broad exemption
available to qualifying dividends under article 5 of the EU Directive.
Recommendation:
U.S. based (and, more generally, non-French) groups should carefully review their structure and
assess the potential impact of the 3% Surcharge. It should be noted that the filing of a refund claim is
1
subject to a three-year statute of limitation, so any claim with respect to the 3% Surcharge paid in
2012 must be filed before December 31, 2014.
Paul Hasting’s tax controversy team includes both U.S. and French tax lawyers who have extensive
experience in the field of European Union tax litigation and are at your disposal to provide you further
information on this issue.

If you have any questions concerning these developing issues, please do not hesitate to contact any of
the following Paul Hastings lawyers:
Los Angeles
Paris
Nancy L. Iredale
1.213.683.6232
[email protected]
Allard De Waal
33.1.42.99.04.25
[email protected]
Stephen J. Turanchik
1.213.683.6187
[email protected]
Thomas Pulcini
33.1.42.99.04.46
[email protected]
Paul Hastings LLP
StayCurrent is published solely for the interests of friends and clients of Paul Hastings LLP and should in no way be relied
upon or construed as legal advice. The views expressed in this publication reflect those of the authors and not necessarily
the views of Paul Hastings. For specific information on recent developments or particular factual situations, the opinion of
legal counsel should be sought. These materials may be considered ATTORNEY ADVERTISING in some jurisdictions. Paul
Hastings is a limited liability partnership. Copyright © 2014 Paul Hastings LLP.
2